Trump and Michael Cohen don't see eye-to-eye on the biggest issue in his case

President Donald Trump and his longtime lawyer Michael
Cohen are split on the biggest issue in Cohen's case - the
appointment of a special master.

Cohen supports the court appointing a special master,
which would have initial review of documents seized in raids on
Cohen, while Trump opposes it.

Trump appears to be distancing himself from
Cohen.

President Donald Trump and his longtime lawyer Michael Cohen
don't see eye-to-eye on the biggest issue being debated in
Cohen's case.

Ad

That issue is the appointment of a special master, an outside
third party who would initially review the documents seized by
the government during the FBI's raids of
Cohen's home, office, and hotel room, which were conducted
because investigators feared the materials were at risk of being
destroyed. The special master would determine what falls under
protected attorney-client privilege and what does not and can be
used by the prosecution against Cohen.

Cohen and Trump have had a close relationship over the years -
with Cohen claiming intense loyalty to the president as a friend
and adviser - and Cohen has handled some sensitive matters
surrounding Trump, including paying porn star Stormy Daniels
$130,000 days before the election to keep quiet about an alleged
affair.

After initially seeking to have Cohen be the one to review the
documents, his attorneys have sought the appointment of such a
special master by US District Judge Kimba Wood. At the same time,
Trump requested initial review of the documents, brushing back
against the appointment of a special master.

Ad

The government, meanwhile, is against the appointment of a
special master, insisting that what is known as a "taint team" of
prosecutors can effectively do the initial document review. The
case, they argue, does not present special circumstances that
differentiate itself from other cases where a taint team is
standard protocol.

A 'bizarre' conflict

Wood was not warm to Trump's
side, saying she's open to the taint team or a special
master. Both Cohen's attorneys and federal prosecutors have
submitted a list of possible special masters. Observers told
Business Insider that the judge is more likely to select one of
the government's nominees, which are all retired judges from the
Southern District of New York. Cohen's team submitted a group of
former federal prosecutors.

But the daylight between Trump and Cohen on this issue struck
some as "bizarre."

"It's not bizarre that Cohen is asking for one, it's not bizarre
that the US attorney's office is opposing one and saying it's
happened under special circumstances and those circumstances
aren't here, the thing that Trump's attorney said he wanted is
literally unprecedented and that's the only thing they're asking
for," Mitchell Epner, a former assistant US attorney for
the District of New Jersey and an attorney at Rottenberg Lipman
Rich, told Business Insider. "They're saying either give
us that, or we're not taking a position on any of the other
things. We think they are all bad."

caption

Cohen.

source

Yana Paskova/Getty Images

If Trump would've opted to join Cohen in an
application for the special master, Epner thinks Wood would have
already granted one. While there is some thought that, if Wood
were to grant a special master in this instance, defense
attorneys would soon ask for such an appointment any time the
government seizes records from an attorney's office, Epner said
the circumstances are unique here in that the president is
involved.

The fact Trump does not want to go the route of the special
master is "really strange," he added.

"It would be surprising to me if Trump's attorney was the cause
of that daylight," Epner said of Trump's attorney, Joanna Hendon.
"That sounds to me like a client call. If there's an attorney in
the background who is advising Trump who is not advising the
court, there could be a legal strategy there saying they didn't
support the special master if one is appointed and this comes up
later."

But "there is also the possibility that you have somebody who
doesn't understand how the federal courts work and is pounding on
a keyboard like a monkey," he continued.

Cohen and Trump's differences over the special master is
indicative of a larger trend of the president and his
administration seeking to distance itself from Cohen, who appears
to be in a heap of trouble. Earlier this week, White House
press secretary Sarah Huckabee Sanders sought to distance the two
from each other, saying she believes Trump and Cohen have "still
got some ongoing things, but the president has a large number of
attorneys."

"This is the classic Trumpian playbook right here," Andrew
Wright, a Savannah Law School professor who served as associate
counsel to former President Barack Obama and assistant counsel to
former Vice President Al Gore, told Business Insider. "You use
people with one-way loyalty and the minute they become
inconvenient to you, they become discarded. I think that problem
of daylight starts with President Trump and his history of
turning on people."

Cohen's legal team, he said, is moving to best serve its client.

"Cohen's lawyers are dealing with the art of the possible, and
Trump's lawyers are dealing with their client's fantasy," he
continued. "So Judge Wood was not headed in this direction."

A special master could greatly slow down the review process

Should Wood decide to appoint a special master, observers said it
could lead to a slower review process than if the government
simply reviewed the documents.

"Anyone who wants a special master is looking for delay," Roland
Riopelle, a former federal prosecutor with the US attorneys
office for the Southern District of New York and a partner at
Sercarz & Riopelle, told Business Insider in an email.
"Someone who doesn't, is less interested in delay. The master
results in a slower review and more opportunities for
litigation."

caption

Trump.

source

Lynne Sladky/AP

But while most experts thought Trump's argument against the
special master was weak, one former federal prosecutor with the
US attorney's office for the Southern District of New York said
Trump's was actually the most "intellectually honest."

"Trump's position is the analytically sensible one," Steven
Feldman, a former assistant US attorney for the Southern
District of New York who now works as a defense attorney, told
Business Insider. "If you're saying the government
shouldn't be looking at my stuff, because it's secret
confidential information that I provided or shared in secret,
then why would I want some random third party looking at my
stuff."

Feldman said he would "love" for the government practice of
having a taint team review potentially privileged documents to
change.

"It's in some way a legal fiction that your adversary, the
government, is looking at the materials that are supposed to be
secret and private and getting to determine whether they get to
use it in a prosecution," he said, adding that if Wood decides to
appoint a special master as a substitute for the taint team,
defense attorneys like himself will "be making that argument" in
similar future cases "all the time."